Little back story from The Right Perspective:
A former Australian Vogue cover model has won her court battle against Google to obtain the name of an anonymous blogger who called her a “skank” on his blog – and the blog’s author is fighting back.
Liskula Cohen was written up in “Skanks In NYC” last August (the blog has since been taken down). The apparently African-American blogger with a hip-hop flair is seen posing with several model-types, whom he refers to as “skanks”. He claims several of the pics are of him and Cohen dirty dancing. In other posts, he writes, “She’s a psychotic, lying, whoring, still going to clubs at her age, skank”.
Because Google hosted the “Skanks” blog, Cohen sued the Internet giant to reveal its author, after having her initial request denied.
A Federal judge ruled on August 18th that Google must provide what information it still has on the author – which is a name and IP address.
MoDo in NYT:
If you’re written about in a nasty way, it looms much larger for you than for anyone else. Gossip goes in one ear and out the other unless you’re the subject. Then, nobody’s skin is thick enough.
“The velocity and volume on the Web are so great that nothing is forgotten and nothing is remembered,” says Leon Wieseltier, the literary editor of The New Republic. “The Internet is like closing time at a blue-collar bar in Boston. Everyone’s drunk and ugly and they’re going to pass out in a few minutes.”
Those are my people, I protested, but I knew what he meant. That’s why I was interested in the Case of the Blond Model and the Malicious Blogger.
Sooner or later, this sort of suit will end up before the Supreme Court.
It began eight months ago when Liskula Cohen, a 37-year-old model and Australian Vogue cover girl, was surprised to find herself winning a “Skankiest in NYC” award from an anonymous blogger. The online tormentor put up noxious commentary on Google’s blogger.com, calling Cohen a “skank,” a “ho” and an “old hag” who “may have been hot 10 years ago.”
Cohen says she’s “a lover, not a fighter.” But the model had stood up for herself before. In 2007, at a New York club, she tried to stop a man named Samir Dervisevic who wanted to drink from the vodka bottle on her table. He hit her in the face with the bottle and gouged a hole “the size of a quarter,” as she put it, requiring plastic surgery.
This time, she punched the virtual bully in the face, filing a defamation suit to force Google to give up the blogger’s e-mail. And she won.
“The words ‘skank,’ ‘skanky’ and ‘ho’ carry a negative implication of sexual promiscuity,” wrote Justice Joan Madden of State Supreme Court in Manhattan, rejecting the Anonymous Blogger’s assertion that blogs are a modern soapbox designed for opinions, rants and invective.
[...]
Once she had the e-mail address, Cohen discovered whence the smears: a cafe society acquaintance named Rosemary Port, a pretty 29-year-old Fashion Institute of Technology student.
Cohen called and forgave Port, but did not get an apology. She had her lawyer, Steve Wagner, drop her defamation suit. But now Port says she’ll file a $15 million suit against Google for giving her up.
Port contends that if Cohen hadn’t sued, hardly anyone would have seen the blog. (If a skank falls in the forest and no one hears it … ?)
But Cohen says the Internet is different than water-cooler gossip. “It’s there for the whole world to see,” she told me. “What happened to integrity? Why go out of your way solely to upset somebody else? Why can’t we all just be nice?”
[...]
The Internet was supposed to be the prolix paradise where there would be no more gatekeepers and everyone would finally have their say. We would express ourselves freely at any level, high or low, with no inhibitions.
Yet in this infinite realm of truth-telling, many want to hide. Who are these people prepared to tell you what they think, but not who they are? What is the mentality that lets them get in our face while wearing a mask? Shredding somebody’s character before the entire world and not being held accountable seems like the perfect sting.
Pseudonyms have a noble history. Revolutionaries in France, founding fathers and Soviet dissidents used them. The great poet Fernando Pessoa used heteronyms to write in different styles and even to review the work composed under his other names.
As Hugo Black wrote in 1960, “It is plain that anonymity has sometimes been assumed for the most constructive purposes.”
But on the Internet, it’s often less about being constructive and more about being cowardly.
Laura McKenna at 11D:
There are a lot of excellent bloggers who shield their names. They might have to protect their identities, because their workplace would frown on their blogging. Maybe it allows them to speak some hard truths.
This just feels like a lot of whining to me. If you’re on the opinion page of the New York Times, you have to be able to take the heat. It’s part of the game. If you’re not up for it, then I’ve got a waitress job for you.
Daniel Drezner in Foreign Policy:
Maureen Dowd has a column today entitled “Stung by the Perfect Sting.” We’re going to run much of this column through a little MoDo translator, partially inspired by Josh Chafetz’s still-relevant discussion of the Immutable Laws of Maureen Dowd, and helped by a few other bloggers.
Here we go….
“If I read all the vile stuff about me on the Internet, I’d never come to work. I’d scamper off and live my dream of being a cocktail waitress in a militia bar in Wyoming.
If you’re written about in a nasty way, it looms much larger for you than for anyone else. Gossip goes in one ear and out the other unless you’re the subject. Then, nobody’s skin is thick enough.”
Translation: “I read everything about me on the Interwebs. Everything. And despite my bravado act, it hurts me sometimes. I’m brave for putting up with it, though. Ah, the first graf and I’ve already checked off the Fourth Immutable Law of Dowd: ‘The particulars of my consumer-driven, self-involved life are of universal interest and reveal universal truths.’
Say, the militia crack was pretty funny, right? Right?”
“The velocity and volume on the Web are so great that nothing is forgotten and nothing is remembered,” says Leon Wieseltier, the literary editor of The New Republic. “The Internet is like closing time at a blue-collar bar in Boston. Everyone’s drunk and ugly and they’re going to pass out in a few minutes.”
Translation: “You know how, later on in this essay, I say that insulting individuals on the Internet is rude? That’s only if you do it badly. If you insult broad swathes of people in a charming manner, that’s just witty banter.”
“Those are my people, I protested, but I knew what he meant. That’s why I was interested in the Case of the Blond Model and the Malicious Blogger.”
Translation: “Hah! Less than a third of the way through, and I’ve already checked off the First Immutable Law of Dowd: ‘All political phenomena can be reduced to caricatures of the personalities involved.’ Suck on that, Tom Friedman!!”
The hilarious thing is that she quotes Wieseltier complaining that online writers have no memory, that their conversations go nowhere, that it’s like closing time at a bar where everyone is “drunk and ugly and they’re going to pass out in a few minutes”. The conversation about anonymity, pseudonymity, real names and reputation capital is a long-running one in online discussion, with thoughtful contributions on all sides of the debate. Here comes Dowd, acting like she just crashed into Hispaniola and planted her flag on terra nova. That’s a fabulous example of amnesiac fogginess. If Dowd’s column were a blog entry, she’d have to cover her ears to drown out the roar of the yawns at so elementary a restatement of the basics of this long-standing debate. Anybody with skin in that game has gone beyond just noticing that the issue exists.
On some level, this kind of ouroboroic self-consumption is just what happens to columnists who have nothing left to say but have been given a permanent soapbox. But there is a particular kind of event horizon here: a print columnist complaining about the Internet in terms that are almost a parodistic reproduction of the writing that swirls around the ninth circle of blogging hell. The definition of “no accountability” is a Dowd column (or really, most op-eds at the remaining big papers): you’ll never be expected to do any reporting, never be expected to get your facts straight, and you can pretty much spin out whatever fleeting thoughts come into your head over your morning coffee.
“The Internet is like closing time at a blue-collar bar in Boston. Everyone’s drunk and ugly and they’re going to pass out in a few minutes.” — Leon Wieseltier in today’s New York Times.
Nothing like a little classism to get my day going! Oh, those plebs and their drinking! The reader who completes the phrase “The New Republic is like ______” with the most amusing line wins a free PBR at Solly’s on U Street. You guys should knock this out of the park.
Doug J. picks up on Exum’s quote:
All I can think of is I may be drunk but tomorrow I will be sober, but the New Republic will always be the magazine that endorsed Joe Lieberman for president in 2004.
Pareene in Gawker:
Oh, good. Times op-ed mean girl Maureen Dowd wrote a column about people writing mean things on the internet. And she quotes Leon Wieseltier!
See, a model named Liskula Cohen googled herself and found out that some anonymous and completely unread blogger called her a “skank” and so she sued to find out the identity of the blogger who called her a skank and it turned out that it was this girl she knew, of course, because who the hell else would bother to blog about how some random model is a skank?
Dowd aligns herself with Cohen, the wronged party, which is odd, because Dowd’s entire career has been built on calling people names. But Dowd has also been a victim, herself, of people saying mean things about her, on the internet! (People like us!)
Enough picking on MoDo! She’ll just write a column on us. Onto the actual case, Mark Hoofnagle at Science Blogs:
My civil libertarian friends are “worried” about the precedent set in the recent Liskula Cohen case. In the case, a formerly anonymous blogger said some nasty things about Cohen. So nasty that Cohen sued to unmask the blogger’s identity and was successful in doing so. The blogger is now suing Google alleging that the company owed her a fiduciary duty and should not have revealed her identity.
Critics of the Cohen case tend to focus on the fact that the blogger called Cohen a “skank.” They argue that the word is mere hyperbole and not an objective fact. But the blogger said and did much more than that. From the opinion (PDF):
I think the civil libertarians are wrong on this case. Privacy is not an unlimited right. Cohen pierced the blogger’s veil of anonymity, but to do so she had to go to court and prove some merits of the case. Maligning another as promiscuous has always been defamatory, and the First Amendment has always allowed punishing such expression. This type of speech carries with it serious harm to women, especially those who rely upon their reputation in their work.
The Skanks in NYC raises a lot of interesting issues. I’ll tackle a few in this post.
1.Was Cohen’s lawsuit frivolous? Cohen might have a decent defamation lawsuit, but she subsequently dropped it when she found out Cohen’s identity. This behavior indicates she was using the lawsuit only to unmask the blogger. I agree with CyberSLAPP that such a practice should be restricted.
2. Did the court properly reveal Port’s identity? I believe that the court used too low a standard in revealing the blogger’s identity. The court ordered Google to reveal the anonymous blogger because “a strong showing that a cause of action exists.” This standard appears to be little more than requiring the plaintiff to survive a motion to dismiss. While I’m very sympathetic to people who have been injured through online defamation and invasions of privacy, I’m also wary of courts being too quick to reveal the identities of bloggers. I believe that in order to reveal a blogger’s identity, plaintiffs must meet the summary judgment standard, as set forth in Doe v. Cahill, 884 A.2d 451 (Del. 2005) (I blogged about it here).
3. Does Port have a cause of action against Google? I don’t think she’s got much of a case. Google was complying with a court order. However, over at PogoWasRight, Dissent raises the interesting point that Google had a rather anemic defense of Port’s anonymity. Could Google be liable for not doing enough to defend Port? Maybe, as EFF attorney Matt Zimmerman notes in Dissent’s post, if Google didn’t notify the anonymous blogger and give her a chance to respond. Beyond that, though, I’m not sure that there’s much of a case against Google, but there may be facts I’m not aware of that would change my opinion.
4. Does Port have a cause of action against Cohen for using the legal process to reveal her identity? A better defendant than Google might be Cohen. Port may be able to sue Cohen, perhaps for abuse of the legal process, if Port can prove that Cohen initiated a frivolous action solely to unmask her. The revealing of an anonymous blogger’s identity is a privacy invasion in my opinion, because it links speakers to things they said that they don’t want to be connected with their true identity. The use of legal process and obtaining of a court order might provide shelter to Cohen unless Port could prove it was just a ruse to reveal her identity.
5. How should courts protect anonymous bloggers? In addition to using the summary judgment standard, courts should require a plaintiff who finds out the identity of an anonymous blogger to keep it confidential until it absolutely must be revealed to the public. Courts should enforce this via a protective order. A lawsuit can proceed quite far before it is necessary to reveal a litigant’s name to the general public.
Richard Koman at ZDNet:
And so … she is suing Google for, um, “breaching its fiduciary duty to protect her expectation of anonymity,” according to Port’s lawyer, Salvatore Strazzullo.
Legal time-out. That strikes me as nonsensical concept: the fiduciary relationship is the highest, most stringent duty one can have to another, typically the directors duty to shareholders, or a trustee’s duty to beneficiaries. To create such a relationship between a company and someone who creates a free blogging account makes a mockery of the relationship. And what is the duty to protect anonymity? That is definitely not listed in the treatises’ lists of fiduciary duties. What is listed is the duty not to profit from one’s position as the fiduciary. The idea that Google has undertaken a fiduciary relationship with users – and that the duty includes disobeying a court order – is laughable. Now back to our catfight…
This seemingly trivial yet voyeuristic spat is in fact a major First Amendment case in the making, the lawyer thinks.
“I’m ready to take this all the way to the Supreme Court. Our Founding Fathers wrote ‘The Federalist Papers’ under pseudonyms. Inherent in the First Amendment is the right to speak anonymously. Shouldn’t that right extend to the new public square of the Internet?”
